Kessler Topaz Meltzer & Check, LLP: Bayer Corporation to Pay $40 Million to Settle Whistleblower Claims Alleging Fraud in the Marketing of Three Drugs

RADNOR, Pa.–(BUSINESS WIRE)–The law firm of Kessler Topaz Meltzer & Check, LLP ( today announces that Bayer Corporation (“Bayer”) has agreed to pay $40 million to resolve claims in two long-standing whistleblower lawsuits alleging Bayer violated anti-fraud laws by selling and promotion of three drugs, Trasylol, Avelox and Baycol. Additionally, Bayer has agreed to pay a separate amount to resolve allegations of unlawful retaliation against the whistleblower who raised his concerns with his superiors.

The cases were brought under the False Claims Act by a former Bayer employee, on behalf of the United States and numerous states. The settlement covers two whistleblower lawsuits. The first one, United States ex rel. Simpson v. Bayer Corp., et al. (DNJ) filed in 2005, alleged that Bayer paid illegal kickbacks in connection with two drugs, Trasylol and Avelox; promoted Trasylol for uses that were not reasonable and necessary under Medicare payment rules; and fired the whistleblower for raising concerns internally. In the complaint, Bayer allegedly paid illegal bribes to health care providers in the form of honorariums, grants, speaker program fees, entertainment, travel and other benefits, including to attend at supposedly promotional medical meetings. Bayer further allegedly promoted Trasylol, an inpatient drug indicated for specific types of cardiac surgeries, for off-label and unreasonable uses, among other things, by misrepresenting its safety risks and exaggerating its effectiveness.

The second trial United States ex rel. Simpson v. Bayer Corp, et al. (D. Minn.), filed in 2006, alleged that Bayer fraudulently induces the U.S. Department of Defense to enter into contracts for its statin drug, Baycol, by misrepresenting and omitting information about serious adverse reactions associated with to the drug.

Both cases were filed under the False Claims Act, which encourages individuals to fight government fraud by taking legal action. Under the FCA, successful whistleblowers can receive a monetary reward of between 15 and 30% of the government clawback. The False Claims Act also prohibits retaliation against whistleblowers.

Kessler Topaz has been representing the whistleblower since 2014, with the whistleblower and her attorney spending significant time and money pursuing these unaddressed cases. Solving these cases involved in-depth discovery and examination of millions of pages of documents; retention of multiple expert witnesses; and the litigation of numerous ruling requests, discovery requests and appeals. This resulted in several important judicial opinions both at the level of the courts of appeal and at the level of the district courts.

“This case once again reaffirms the critical role that whistleblowers can play. Our client bravely stepped forward to challenge Bayer’s conduct and showed incredible dedication and sacrifice in pursuing these cases for so long,” said David Bocian, former federal prosecutor and practice group leader. Whistleblower and False Claims Act by Kessler Topaz. Kessler Topaz attorney Asher Alavi, whose practice is dedicated to representing whistleblowers, added that the Trasylol case demonstrates that misrepresentation law and anti-bribery law are powerful tools. to address how pharmaceutical companies promote and sell inpatient medicines to hospitals and other providers. . Alavi cited the published opinion on the parties’ cross-motion for partial summary judgment, which concluded that the government’s payment mechanism for inpatient drugs cannot be used to insulate a defendant from liability for fraud.

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Kessler Topaz specializes in prosecuting complex litigation on a contingent basis, litigating cases against the largest multinational corporations and the most sophisticated defense contractors. Since its inception, the firm has recovered billions of dollars for its clients, developed a worldwide reputation for success, and has been repeatedly named one of the nation’s premier plaintiffs firms. The litigation team further included the firm of Carella, Byrne, Cecchi, Brody & Agnello, PC, led by partner James E. Cecchi, a leading law firm in the New Jersey – New York metropolitan area. which serves a diverse clientele ranging from small businesses to Fortune 500 companies.

Kessler Topaz’s Whistleblower and False Claims Act Litigation practice group includes former federal and state attorneys with extensive litigation experience in healthcare, securities, corporate and governmental contract fraud and litigation. lawyers who devote their practice to representing whistleblowers. The practice group is led by partner, David Bocian and attorney, Asher Alavi.

Luisa D. Fuller